Richmond Times Dispatch
Monday, November 23, 1998
BY CARRIE JOHNSON
TIMES-DISPATCH STAFF WRITER
THE RAPIST WANTS NOTES TO BE SECRET
AFTER HOMICIDE TRIAL, HE'S SEEKING CHANGE IN STATE LAW
To Michael Brown, it was the biggest conflict of his professional
Brown, a licensed counselor, knew one of his clients, Latonia Beverly,
was going to be investigated in connection with a homicide. He knew
Beverly, who had previously tried to commit suicide, needed to talk
to him. But he also knew anything she said to him could be used against
her if his notes were subpoenaed, which is permissible under Virginia
That's precisely what happened.
Brown was called as a witness, his notes were read in court and
Beverly was convicted of manslaughter in the death of 26-year-old
Ericka Harris, her husband's mistress. Jurors recommended she spend
15 years in prison for the crime.
"It was a terrible experience," Brown said. "I felt
raped at the end of it."
Now he wants to launch a campaign to reverse the Virginia law that
allows therapists' notes to be used in criminal trials. But he knows
the odds are stacked against him.
"The truth of the matter is, right now there's an attitude
of 'find the criminals and lock them up,'" Brown said. According
to the Code of Virginia, communications between counselors and their
patients are protected from use in civil cases but can be used in
criminal trials. That means therapists can be compelled to testify
and their notes can be used in court if one of their clients is charged
with a crime.
Brown maintains that the law places a tremendous burden on therapists
and the people who need treatment. He said many of his colleagues
refuse to take detailed notes for fear they will one day be subpoenaed.
But without notes, it's difficult to keep track of a patient's state
of mind from week to week and to provide adequate care, Brown said.
It also erects a barrier to building trust between patients and therapists
and makes it less likely that someone who needs treatment will seek
it, he added.
"The conflict is between catching people who have committed
criminal acts and healing people whose lives have fallen in such
disarray that criminal acts have occurred."
But Duncan Reid, the Henrico County assistant commonwealth's attorney
who prosecuted the case against Latonia Beverly, said the law is
an important tool in the search to discover the truth about a crime. "You'd
lose valuable evidence [if the law was changed]," Reid said. "The
public has a right to find out what happened." There are some
relationships that are protected under Virginia law, including husband
and wife and attorney and client. The lack of complete confidentiality
between therapist and patient is a small price to pay to bring a
criminal to justice, Reid said. "The question is what is ultimately
best for society: the truth or somebody's mental health," he
Many family members of those with mental illnesses also favor a
limitation on confidentiality between counselors and patients, said
Val Marsh, executive director of the Virginia Alliance for the Mentally
Ill. Marsh said many times it's sometimes necessary to go to court
in order to keep mentally ill people from harming themselves or others.,
Protecting the conversations between a therapist and a patient might
keep the patient from getting needed treatment. "Sometimes you
need to make sure someone will follow a treatment plan," she
In 1996, the U.S. Supreme Court weighed in on the topic of confidentiality
and ruled that federal courts should recognize a psychotherapist-patient
Writing for the majority, Justice John Paul Stevens said awarding
privilege to the communications between therapists and patients serves
the public interest by allowing those suffering from mental or emotional
problems to seek help without fear of disclosure. "The mental
health of our citizenry, no less than its physical health, is a public
good of transcendent importance," Stevens wrote.
State courts are less uniform when it comes to confidentiality laws,
said Paul Lombardo, associate professor of law at the University
of Virginia. "The states are all over the place on this issue," he
said. Most states award some degree of privilege to the conversations
between therapists and clients, Lombardo said. Many–like Virginia–shield
the communications from use in civil trials while permitting it in
criminal cases. That can be a problem, Lombardo said. As more people
depend on counselors, there is potential for prosecutors to abuse
the law to try to gain easy access to personal information. "We
rely too much on the notes of therapists when we could get information
from other sources," he said.
As for Brown, he'd like to see the General Assembly take another
look at Virginia's law and consider giving therapists and their clients
added protection. "Every lawyer has confidentiality and every
single lawyer knows how critical that is," he said. "This
law really says to these people, 'Don't get help.'"